As Americans we are all taught that a fundamental tenant of our criminal justice system is that we are all innocent until proven guilty. Where exactly did this come from? When I told my children, the oldest of whom was 12 at the time, that I was going to be indicted they told me that I have nothing to worry about because I was innocent until proven guilty and that "they" would have to prove, at a trial what they claim I did wrong. Until the writing of this actual entry, I took for granted that this was written somewhere in the constitution. Keep in mind that I did not go to law school!
I was fascinated to find out that this is not a constitutional right. To be sure the Constitution does provide for the right to remain silent, the right to not incriminate oneself and the right to a trial by jury. From my small amount of research, I have been able to surmise that this is an ancient concept and that the Supreme Court did rule in 1894 (Coffin Vs US). Without getting into the details of the case, as this is not a law blog, the decision states:
"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. … Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is 'reasonable doubt.' It is, of necessity, the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist." -Wikipedia
This in theory, is supposed to protect a defendant. A prosecutor is supposed to have to "prove" you guilt. If a defendant is innocent, he should have nothing to fear! Truth be told my children's' questions were not wrong. If the system is so fair, and so just, then the truth should prevail. If a defendant is innocent, he should never even get to trial. And yet, as anyone who has been to prison will tell you "You can't fight the feds, when they want you, they got you".
In my opinion, one of the major flaws of our criminal justice system lies in the jury system itself. Defense lawyers will tell you that this is an amazing benefit to a defendant, and I do not disagree. The issue with juries is two fold. Firstly, we, as Americans are conditioned to trust the authorities. We are trained that the government is here to protect us. Sure, we have the right to challenge injustices, but we are taught to believe that the government is right, that the government is, at the end of the day good; and compared to many other countries it most certainly is. Even challenges to the government are generally limited to local issues and government employees such as police officers and local politicians. Prosecutors and the DOJ seem to be be surrounded by an aura of infallibility who are here to protect us and can do no wrong. Therefore, to a juror, when in doubt, in condition trust the prosecutor. And they know it. The problem is that prosecutors are sometimes wrong.
The second inherent problem of our jury system reminds of an old axiom that states "Would you want a jury deciding you fate when they were not smart enough to get out of jury duty?" I am sure that there are some jurors who feel they are serving their "civic duty" but sadly, for most jurors this is not the case. Unfortunately, in white collar cases, this can create an extreme bias against defendants. White collar cases are extremely complex. The laws themselves are complex and are all open to interpretation. Often times, the lawyers themselves have to educate themselves on these laws and the interpretations for weeks or months before trial. Add to that, the world of finance is extremely complex. How is a jury, made up of individuals most likely not from the financial industry able to understand the alleged crime and interpretations of complex laws much less be able to decide innocence or guilt! Defense lawyers and prosecutors will spend months or even years trying to understand the complexities of these laws and yet we expect a jury of laymen to be able to learn these laws, understand these laws, and be able to judge a defendant all during the course of a 2 week trial. How is a juror who may not have a brokerage account, who has never even traded a share of stock be able to judge a defendant accused of insider trading! How is a juror who is not employed in a field remotely connected to the financial industry able to decide what is considered wire fraud. How is someone who has never even billed an insurance company able to determine what constitutes insurance fraud or medicare fraud. I have been in the finance industry for 17 years and would not feel comfortable as a juror in such a case. (Luckily as a convicted felon, this will never be a problem). To illustrate this point, I know of someone who went to trial for mortgage fraud and during the deliberations, the jury sent out a question asking for the definition of a mortgage! And this was the jury tasked with coming up with a verdict that would alter his life.
The sad reality is that once a juror is not able to truly understand the nature of the laws and the crimes at the center of a white collar criminal trial he will fall back on his inborn trust of the prosecutors. Prosecutors, in my opinion know this as well. Yes, it would make more sense to have industry insiders fill the role of jurors; people who actually understand the laws, charges and can make an informed decision as to the level of innocence or guilt. It would probably make sense to have Wall Street veterans serve on the jury for an insider trading case. Unfortunately, it is virtually impossible to arrange for that type of a jury. Defense attorneys are then faced with the impossible task of trying to simplify extremely complex issues, a nearly impossible task. Is it any wonder that so many of these verdicts when compared to non white collar convictions are appealed? Of course, unless your judge allows you to stay out of prison pending appeal, you may end up spending more time in prison waiting for the results on your appeal than you would have had you taken a plea deal. Is it worth it?
It is wishful thinking to think a white collar defendant, can get a truly fair trial. The mechanism simply doesn't exist and I highly doubt that when the framers of guaranteed us the right of trial by jury that they were envisioning white collar crimes. A defendant faced on white collar charges needs to keep this in mind when deciding how to proceed with his case. He may have to face the reality that he is in-fact, guilty until proven innocent.
NOTE: I am not a lawyer and none of this should be construed as legal advice. All legal questions should be addressed with your lawyer. These are merely my opinions based on my experiences.